K. Varadamma vs Kanchi Sankara Rcddi and Others

Subba Rao, C.J.—This is a Letters Patent Appeal against the judgment of our learned brother Viswanatha Sastri, J.

The facts are not in dispute. One Kanchi Veeraraghava Reddi died leaving two widows Amma-yamma and Varadamma. The senior widow Amma-yatama with the consent of her husband''s divided Ors. , adopted the Plaintiff on 12th March, 1944. Apprehending that the junior widow and one of the brOrs. of late Veeraraghava Reddi would raise disputes questioning the validity of the adoption, the Plaintiff filed O. S. No. 9 of 1945 on the file of the Court of the District Munsiff, Chittoor, for a declaration, that he was the validly adopted son of Veeraraghava Reddi and for possession of the properties

Defendants 1 to 4 are the divided brOrs. of Veerarsfghava'' Reddi. The 5th Defendant is the junior widow of Veeraraghava Reddi and Defendants 6 and ''7,'' are'' her daughters. Various defences were of the adoption.

The District Munsif and on appeal the learned Subordinate Judge upheld the factum and validity of the adoption. The 5th deft preferred a S. A. to the High Court which was disposed of by Viswanatha Sastri, J. The only point raised in the Second Appeal was that the adoption was not valid inasmuch as the senior widow took the Plaintiff in adoption without the consent of the junior widow. The learned Judge held that as the adoption was made with consent of the nearest male sapindas, it was valid, though the consent of the Junior widow, was not taken. In the Letters Patent Appeal tire same contention was raised.

The only question therefore is whether the adoption made by a senior widow with the consent of the nearest male spends but without the consent of the Junior widow is valid. The answer depends upon the principle underlying the doctrine of consent1. It is settled law in this State that a widow can take a boy in adoption with the consent of the nearest spenders of her husband. It is also settled that there should be such evidence of the assent of kinsmen or spenders as suffices to show that the act was done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor form a corrupt motive. This doctrine had not its origin in any specific Hindu Law text but a remote connection may be discovered in the state of the perpetual tutelage assigned to woman under Hindu Law expressed so tersely and clearly in the well-known text of Yajnavalkya in Chapter I, verse 85''.

Let her father protect a maiden; her husband a married woman", sons in old age; if none of these other gnatis (kinsmen); she is not fit for independence."

In what is called popularly the Ramnad Case, Collector of Madura v. Mootoo Ramalinga Sathu-pathy, 12 Moo Ind App. 397 (PC) (A) their Lordships based their decision on the presumed incapacity of women for independence. Their Lordships stated:

The assent of the kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent, of all those whose possible and reversionary interest in the estate would be defeated by the, adoption.

In AIR 1947 124 (Privy Council) (B). the need for consent arises because of the presumed incapacity of women for independence.

A Division Bench of the Madras High Court in f Venneti Sundara Rama Rao Vs. Chamarti Satyanarayanamurthi being minor by natural father and guardian, Chamarti Bulli Venkatarao and Another, (C), had occasion to trace the doctrine of consent in some detail. At;p; 485(of ILR Mad): (at p. 82 of AIR), Viswanatha Sastri observed "The root of the matter is that the permission, of the husband, or; in its absence, the assent of his'' father or other gnat is was required for an adoption by the widow Eason only of her dependence, adoption being in itself a meritorious act.

At 487 of ILR Mad): (at p.-83 of AIR. The learned Judgil proceeded to state.

In short the Board reiterated the view that the assent of a'' masculine mind was required by reason the presumed incapacity of women for undefended ''action and as evidence of the propriety of the adoption and n6t because it in any way operated as a waiver or surrender of the proprietary rights of the arty by whom assent was given.(10) In considering the scope of this doctrine; again in a different context, I observed in Sure Subba Rao and Another Vs. Sure Venkata Satyanarayana and Another, (D), as follows at p. 99 (of Mad LJ): (at p. 757 of AIR):

It will therefore be seen that the reason for the rule is hot the possible deprivation of the proprietary interests of the reversionary but die state of perpetual tutelage of women under Hindu Law. The consent of the kinsmen was considered to be a soften guarantee against any capricious action on the .part of the widow in taking a boy in adoption.

It is therefore clear that the presumed in-) capacity of a woman to arrive at a balanced and in-_ 1 dependent judgment connected with matters of adoption was the foundation of the doctrine of consent. It is futile to enquire at this stage whether there was any justification for that assumption. It was considered that the advice of the nearest sapinda would enable the widow to act without any caprice in the discharge of her religious duty. If that be the reason for the rule, it would obviously be incongruous to hold that a widow incompetent to act independently can, relying upon Anr. woman suffering from the same infirmity, make a valid adoption. It would be more anomalous if it were to be held 1 that a senior widow with a presumed mental incapacity could sustain her act by invoking the aid of the junior'' widow who by the same party of reasoning would be mentally deficient to a higher degree.

But it is said that, as the proprietary interests of the junior widow would be affected by the adoption, it is just and equitable that she should be consulted before the remoter sapindas are consulted. It is true that at one time greater emphasis was laid on the proprietary interests affected by reason of the adoption. But that question was finally and I, authoritatively decided in Amarendra Man Singh v. Sanatan Singh ILR 12 Pat 642: (AIR 1933 PC 1155) (E), by the Judicial Committee.

Sir George Lowndes, accepting the principle (laid down by Holloway, J., observed that "the substitution of a son of the deceased for spiritual reasons is the essence of the thing and the consequent devolution of property a mere accessory i to it.

In Raghunadha v. Sri Brozo Kishoro ILR 1 Mad 69 K (PC) (F), their Lordships made the following pertinent remarks in extending the reason for the rule:

But it is impossible not to see that there are ''grave social objections to making the succession of property - and it may be in the case of collateral succession as in the present instance, the rights of .parties in actual possession - dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are apt in India to exert over woman possessed of or capable of exercising dominion over property. It seems therefore to be the duty of the Courts to keep the power strictly within the limits which the law has assigned to it.

The Judicial Committee in AIR 1947 124 (Privy Council) (B), accepted ILR 12 Pat 642: (AIR 1933 PC 155) XE), as laying down the correct position on this aspect of the case. It is, therefore clear that the doctrine of consent is based upon the presumed incompetency of a widow rather than upon the idea of any interference with the proprietary rights of the sapindas.

But it is contended that the word �sapinda� has a comprehensive meaning so as to take in a widow and there is no justification for excluding her when the decided cases do not in terms do so. In the Mitakshara, the term ''sapinda'' is used in the sense of, one of the same body, i.e., a blood relation. But, according to the Hindu mode of computation, this includes relations within the seventh degree. The term ''sagotra sapinda'' was used in respect of relations of the same gotra and binnagotra sapinda for ban-dhus. Lawfully wedded wives of the sapindas were also brought under that category. See Golapchandra Sarkar Sastri''s Hindu Law, 8th edition, p. 69. There is, therefore, justification for the contention that the word ''sapinda'' takes in the widow of the last male holder. But the principle underlying the doctrine of consent cannot sustain any such wide interpretation in the present context. The acceptance of this argument would destroy the principle itself. Indeed all decisions which form landmarks in the development of the doctrine, either expressly or impliedly use the word in the sense of male spends. In 12 Moo Ind App 397 (PC) (A), the widow of a divided member took a boy in adoption with the consent of her father-in-law. Their Lordships, in dealing with that question, observed at p. 441:

In such a case, therefore, their Lordships think that the consent of the father-in-law to whom the law points as the natural guardian and venerable protector of the widow would be sufficient.

In Vellanki Venkatakrishna Rao v. Venkat-rama Lakshmi, ILR 1 Mad 174 (PC) (G), the Judicial Committee, explaining the observations in 12 Moo and App 397 (PC) (A), emphasized that there should be such proof of assent on the part of the spends as would be sufficient to support .the inference that the adoption was made by the widow not from capricious or corrupt motives, or in order to defeat the interest of this or that sapinda but upon a fair consideration, by. what may be called a family council of the expediency of substituting an heir by adoption to the deceased husband., In the aforesaid two cases the word ''sapindas'' and. "kinsmen'' must necessarily refer only, to male sapindas for the ponsent of the spends was necessitated by the inherent incapacity of the widow to act independently. In ILR 1 Mad 69 (PC) (P), though it was not definitely stated that sapindas meant only, male sapinda, the following passage leaves no room to doubt that their Lordships intended only male agnates:

It is upon that family that, as a widow she has claim for maintenance, It is in. that family that in the strict contom''Blatjqn of , law, she ought to reside. It is in the members of that family that she must presumably find such councillors and protectors as the law makes requisite for her.

In Doraiswami Muttiriyan and Another Vs. Muttachi alias Nambiyappa Muthiritan, (H), the Judicial Committee made their intention clear. Mr. Ameer AH dealing with the Ramnad case (A) observed as follows:

The 12 Ind App 397 (PC) (A) established the proposition that, under the DraVidian branch of the. Mitakshara Law, in the absence of authority from her deceased husband a widow may adopt a son with the assent of his male agnates in die Dravida Country, where such law is in force.

Later on the learned Judge proceeded to state at p. 1009 (of ILR Mad): (at p. K).l of AIR), as follows:

If there is no father the divided brOrs. take his place by virtue of die tie of blood as her husband''s nearest sapindas; they become her natural guardians and the protectors of her interests. They also have an interest in the protection of the inheritance. In the absence, then of the father, the assent of the divided brOrs. is equally requisite for the validity of the widow''s adoption.

It will be noticed that the Judicial Commit tee omitted ''mother'' who is the nearer heir to the 1 widow''s husband than his brOrs. . This can only; toe on the ground that she being a woman was not competent to give her consent for the adoption. So too, the Judicial Committee in Krishnayya v. Laksh-mipathi ILR 43 Mad 650: AIR 1920 PC 4) (I) and AIR 1935 190 (Privy Council) (J), refer to sapindas which in the context could only mean male sapindas. Whatever ambiguity there may be in the said decisions, the Judicial Committee in AIR 1947 124 (Privy Council) (B), made it absolutely clear that they meant only male sapindas. There the question was whether an adoption by the widow of a Hindu with the consent of the divided agnates but without the consent of the daughters was valid. At p. 377 (of ILR Mad): (at p. 129 of AIR), after referring to the decision in Veerabasavaraju v, Balasurya Prasada Rao ILR 41 Mad 998: (AIR 1918 PC 190) (J), Sir Madha-van. Nair stated as follows:

The words ''kindred and kinsmen'', words of general significance used in 12 Moo Ind App 397 (PC) (A),; are here interpreted to mean ''male agnates'' and this interpretation is amply borne out by the facts of that case as already stated. Similar expressions appearing in the other cases should also be similarly interpreted.

At p. 380 (of ILR Mad): (at p. 130 of AIR), His Lordship clearly stated what the Judicial Committee intended when they used the word sapindas and other terms in the previous judgment thus:

It appears to their Lordships that in those judgments, the Board intended to use the terms kindred, kinsmen, sapindas as meaning only male agnates.

After this clear and unambiguous statement, of law, there is no scope for further argument on this aspect of the case.

Learned Counsel for die Appellant relied upon a long catena of cases wherein the preferential right of the senior widow to take a boy in adoption was recognised. See Ranjit Lai v. Bijoy Krishna ILR 39 Cal 582 (L), Kakerla Chukkamma Vs. Kakerla Punnamma and Another, (M), Gujju Nagamma Vs. The Secretary of State for India in Council and Others, (2)) (N), Akuthota Byra Goudu Vs. Muniammal and Another, (O). These cases lay down a principle applicable to a different situation altogether. A Hindu with two or more wives may.

take a boy in adoption or after his death one of his widows may take a boy in adoption. In such cases in a competition between two or more wives or two or more widows, Courts were called upon to decide on the preferential right of the one or other of them. Invariably, they accepted the doctrine that the elder of the two being the dharmapathni is entitled to take a boy in adoption unless the husband expressly or by necessary implication directed otherwise. When once the preferential right of the senior widow is conceded, it follows that the junior widow cannot take a boy in adoption unless the senior widow agrees. The decisions in Kakerla Chukkamma Vs. Kakerla Punnamma and Another, (M) and Rajah Venkatappa Nayanim Bahadur v. Ranga Rao ILR 39 Mad 772: (AIR 1916 Mad 919 (2)) (P), where it was held that an adoption by the junior widow with the consent of sapinda but without consulting the senior widow was invalid, can be supported on the aforesaid principle. As the senior widow who had a preferential right in the matter of adoption was not consulted, the adoption was held to be invalid. Those decisions have. obviously no bearing on the doctrine of consent evolved by Hindu Law.

Before closing we should refer to the decision of a Division Bench of the Madras High Court in Narayanaswami Naick v. Mangammal ILR 28 Mad 315 (Q), which is the only direct decision or the point. There the senior widow took a boy in adoption after having obtained the consent of hi" sapindas but without consulting the junior widow. The learned Judges, Davies and Benson, JJ. held that the adoption was good. At p. 319, the learned Judges observed:

The nor widow is bound, as a matter of duty to consent and if as their Lordships of the Privy Council say (12 Moo Ind App 397 (A)) the consent of kinsmen is required by reason of the presumed incapacity of women for independence rather than the necessity of procuring the consent of all those who interest in the estate would be defeated by the adoption it would seem that the omission to consult the co-widow though no doubt improper, would not h" a sufficient reason for holding the adoption to be invalid.

We entirely agree with the aforesaid observations. While for family peace and good relationship ordinarily a senior widow should do well to consult the younger one before introducing a boy into the family, there is nothing in law which compels her to do so. We therefore hold agreeing with the learned Judge that the adoption in the present case valid.

The appeal is therefore dismissed with costs. The Appellant is directed to pay the court-fee payable to the Government